Court upholds order to unseal police documents in 18-year-old case

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A three-judge appellate panel finds no compelling governmental interest to keep documents sealed in case involving man who spent nearly 10 years on death row.

Oct. 7, 2004 — Documents in the state police investigative file on Earl Washington Jr., a convicted murderer who was exonerated after almost a decade on death row, must be released, a three-judge panel of the U.S. Court of Appeals in Richmond (4th Cir.) ruled Friday.

Ten of 14 documents from Washington’s investigation file were ordered unsealed in a civil lawsuit filed on his behalf. The appellate court upheld a lower court judge’s determination that the Virginia Department of State Police “failed to present a compelling governmental interest” — or in the case of one document, any interest at all — sufficient to warrant keeping the papers sealed.

As to the remaining four documents, the appellate court expressed doubt about the lower court’s assumption that the public had a First Amendment right of access to such papers, which consist of portions of one brief and attachments to two briefs. The case was sent back to the federal district court in Charlottesville to reconsider that question.

The state attorney general’s office had argued that releasing the 14 documents could compromise the “active and ongoing” investigation into the 1982 rape and murder of Rebecca Williams in Culpeper, Va., the Associated Press reported. The state claimed the documents should be kept sealed because they contained information concerning a “certain suspect or suspects,” as well as DNA evidence related to that suspect, Kenneth Maurice Tinsley. The district court, however, rejected the state’s argument because the Tinsley information was already a matter of public record, and his status as a suspect in the Williams case had been extensively reported in the media.

Washington filed a civil suit against the government in 2002 after he was pardoned by then-Gov. James S. Gilmore III. As part of his lawsuit Washington served a third-party subpoena on the state police, demanding release of all documents relating to him, including those related to the investigation of Williams’ murder. The district court initially sealed many of the documents he requested, an order which Washington subsequently challenged because the investigation was no longer ongoing. Numerous media organizations, including The Washington Post , intervened, asking the court to unseal the documents.

Washington’s lead counsel, Eric M. Freedman, said the criminal case is open only in the sense that no one else has been arrested for the crime.

The investigators “haven’t taken any action whatsoever to arrest somebody and have reported it as such to the court,” he said.

Tim Murtaugh, the spokesman for the district attorney’s office, said they are concerned about the ability of law enforcement to maintain integrity of ongoing investigations.

In the investigators’ view, “the documents are related to an ongoing investigation,” Murtaugh said.

Freedman is Washington’s longest-serving lawyer, having represented him in the criminal case since 1985. Freedman subsequently represented Washington, who was proven innocent by DNA testing in 2000, in the more recent civil lawsuit.

“In this case, the documents serve to illuminate how [the investigators] messed up the criminal investigation,” Freedman said. “They arrested the wrong guy, it’s been 18 years and the documents they want sealed explain how that happened.”

Freedman, a constitutional law professor at Hofstra University, said he is pleased with the release of 10 out of 14 total documents, and expects the U.S. District Court to release the final four.

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